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Culhane: Analysis of today’s marriage decision by French Court Culhane By Culhane, Professor of Law, Widener University 3:07pm EST What should we take away, if anything, from today’s unanimous decision by the French Constitutional Council holding that same-sex couples don’t have the right to? After dusting off my French and taking some time to read through it, I have a few thoughts. The most general point is this: There’s not much of interest in the decision for American legal jurisprudence, even though the legal theories discussed are the same as those considered here: and equality. (All that’s missing from the French motto is “fraternité”). First, the relationship between court and legislature is quite different in – a civil law country – than it is in common law nations like the. To oversimplify, French courts are far more deferential than are ours. While the term “activist court” is tossed around carelessly, it’s undeniably true that the American judiciary is, and has been, far more willing to declare legislative determinations unconstitutional than have courts in civil law countries. That’s because the civil code is presumed to lay out the law clearly and comprehensively, and the court’s role is seen as more technical – the judges “simply” apply the law to the case before them. So it’s hardly unexpected that a French court – even a constitutional court – would defer to the legislature. Indeed, the very brevity of the decision highlights the dearth of careful, considered legal analysis the court undertook. I took these points from the decision: FULL STORY: desparate house wife fantasy
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